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Many years ago my colleague Janet Mason recruited me to teach about evidence issues in abuse, neglect, dependency, and termination of parental rights cases. She asked because most of the appellate law was criminal. After some grumbling, I produced a skinny 10-page paper in 2001. I’ve been adding to it ever since, and it has grown to a much longer chapter in the just-released 2017 edition of Abuse, Neglect, Dependency, and Termination of Parental Rights Proceedings in North Carolina. Although the manual is not about criminal cases, it may be helpful to those who work in the criminal courts. You can access the manual at no charge here. You can jump directly to the evidence chapter here. Continue reading →

Must a parent testify against his or her child when called as a witness? Conversely, must a child testify against his or her parent? The answer depends on whether there is a parent-child privilege.

No North Carolina case, statute, or rule. I couldn’t quickly find a North Carolina case or statute on point. So I don’t think that there’s a statutory privilege, and I don’t think our appellate courts have ruled on whether there is a common law privilege. Evidence Rule 501 concerns privileges, but it just says that questions of privilege should be determined in accordance with state law. It doesn’t attempt to list or define the permitted privileges.

Recent Fourth Circuit case. Yesterday, the Fourth Circuit decided a case on point. In Under Seal v. United States, __ F.3d __, 2014 WL 2699722 (4th Cir. June 16, 2014), the Government suspected a man of growing drugs in his home and of possessing illegal firearms, including automatic weapons. It subpoenaed his 19-year-old son, who lived with him, to testify before a grand jury. The son moved to quash the subpoena, arguing that he should be allowed to refuse to testify based on the parent-child privilege. Forcing him to testify, he contended, would create the perception that he was responsible for his father’s prosecution. He argued that “[t]he damage to the father-son relationship [would be] as certain as it is incalculable.” The district court agreed, ruling that a parent-child privilege should be available on a case-by-case basis and that the child in this case should be allowed to claim the privilege because he was relatively young and was financially dependent on his father.

The Fourth Circuit ruled that no such privilege should be recognized in this case. First, it noted that privileges should not be recognized easily, as they conflict with the principle that the law is entitled to every person’s evidence. Second, it observed that while a few state courts and federal district courts have recognized such a privilege, no federal court of appeals has done so while several have rejected it. Finally, it pointed out facts of this case that undercut the claim of privilege, including that the witness is an “adult college student” rather than a young child, and that the witness and his siblings might be at risk from the father’s allegedly illegal activities. The court left the door open to the possibility of recognizing the privilege in a future case with more favorable facts.

Further reading. Those interested in learning more about this issue might consider reading Maureen P. O’Sullivan, An Examination of the State and Federal Courts’ Treatment of the Parent-Child Privilege, 39 Cath. Lawyer 201 (1999) (collecting authorities; acknowledging that most courts in the United States have not recognized the privilege; noting that some other countries do recognize it; and arguing that the rationale for a such a privilege is at least as strong as that for a priest-penitent privilege and other accepted privileges). This ABA article suggests that only four states have recognized such a privilege, but it is an older piece so it may or may not be accurate today.

Additional thoughts. Based on the foregoing, my guess is that a claim of parent-child privilege would face an uphill battle in North Carolina. The claim would be strongest if the case involved a minor child who lived with and was dependent on the parent, and if the criminal activity under investigation did not pose a threat to the child’s safety or well-being. The claim might also be more likely to prevail if the evidence sought concerned a communication between the parent and child that arguably was based on the closeness of the relationship. Communications from the child to the parent might be more likely to be protected than communications from the parent to the child. Cf. Minn. Stat. 595.02(j) (providing that “[a] parent or the parent’s minor child may not be examined as to any communication made in confidence by the minor to the minor’s parent.”).

If you have litigated this issue or have thoughts about whether such a privilege should be recognized, and under what circumstances, please post a comment.

In 2013 North Carolina enacted “Caylee’s Law,” S.L. 2013-52, a statute similar to laws adopted in other states after the high-profile Casey Anthony trial. North Carolina’s law makes a number of changes regarding the reporting of missing, abused or deceased children. This post summarizes the changes, all of which are effective for offenses occurring on or after December 1, 2013.

New Crime: Failing to Report Missing Child By Parent/Care Giver

Elements. A person guilty of this offense:

(1) is a parent or other person providing care to or supervision of a child and

(2) knowingly or wantonly

(3) fails to report the disappearance of a child to law enforcement

G.S. 14-318.5(b).

Punishment. Class I felony. G.S. 14-318.5(b).

Notes.

“Child.” A child is a person less than 16 years old. G.S. 14-318.5(a)(1).

“Disappearance of a child.” A disappearance of a child occurs when the parent or person providing supervision does not know the child’s location and has not had contact with the child for 24 hours. G.S. 14-318.5(a)(2).

Exceptions. The offense does not apply if G.S. 110-102.1 “is applicable.” G.S. 14-318.5(d). As amended by S.L. 2013-52, G.S. 110-102.1 states that child care facility operators, staff, and specified others must immediately report a missing child to law enforcement upon learning that a child under 16 and in their care is missing.

If a child is absent from school, a teacher is not required to report the absence to law enforcement if the teacher reports the absence pursuant to G.S. Ch. 115C Art. 26. G.S. 14-318.5(e).

Multiple convictions and punishments. G.S. 14-318.5(f) provides that this offense is “an offense additional to” other criminal provisions that might apply. This provision creates some conflict with the crime’s punishment provision, stating that the proscribed punishment applies unless the conduct is covered under another provision providing greater punishment. G.S. 14-318.5(b). For a discussion of the meaning of the latter language as used in other criminal statutes, see Jessica Smith: North Carolina Crimes 116 (7th ed. 2012).

Immunity. Anyone who in good faith reports a child’s disappearance as required is immune from any civil or criminal liability that might otherwise occur. G.S. 14-318.5(g). In any liability proceeding, good faith is presumed. Id.

New Crime: Failing to Report a Missing Child By One Who Suspects Danger

Generally. Element (1)(b) requires that the person reasonably suspect that the child “may be in danger.” The statute does not define this term. Its inclusion suggests that there must be some danger to the child other than the general danger associated with a 24-hour disappearance.

Multiple convictions and punishments. The statute provides that “[u]nless the conduct is covered under some other provision of law providing greater punishment, a violation of this subsection is punishable as a Class 1 misdemeanor.” For a discussion of the meaning of this language as used in other criminal statutes, see Jessica Smith: North Carolina Crimes 116 (7th ed. 2012).

G.S. 14-401.22 provides that concealing a person’s death is a Class I felony. Specifically, a defendant is guilty of that offense when with the intent to conceal the death, he or she fails to notify law enforcement of it or secretly buries or disposes of the body. S.L. 2013-52 amends that statute creating a Class H felony version of the crime that applies when the deceased is a child less than 16 years of age. G.S. 14-401.22(a1). If the person violates the statute knowing that the child did not die of natural causes, the offense is a Class D felony. G.S. 14-401.22(e).

False Reports Regarding Missing Children Now a Class H Felony

G.S. 14-225 makes it a Class 2 misdemeanor to willfully make a false, misleading, or unfounded report to a law enforcement officer or agency for the purpose of interfering with the agency’s operation or hindering or obstructing an officer in performing official duties. S.L. 2013-52 creates an enhanced Class H felony version of the offense that applies when the report pertains to a missing child. The new offense applies when a false, deliberately misleading, or unfounded report relates to a:

(1) law enforcement investigation involving the disappearance of a child or

(2) child victim of a Class A, B1, B2, or C felony offense.

G.S. 14-225(b). A child is a person under 16 years old. Id.

Failure to Report Abuse, etc. Now a Crime

G.S. 7B-301 requires any person or institution suspecting that a child is abused, neglected, or dependent or has died from maltreatment to make a report to the local social services department director. It further requires that when a director receives a report of sexual abuse of a juvenile in a child care facility, he or she must notify the SBI. However, the statute does not expressly provide for a criminal penalty for failing to make the required reports. S.L. 2013-52 changes that. Specifically, it enacts new G.S. 7B-301(b) providing that “[a]ny person or institution who knowingly or wantonly fails to report the case of a juvenile . . . or who knowingly or wantonly prevents another person from making a report . . . is guilty of a Class 1 misdemeanor.” This change is significant because it applies to all people who interact with children, including school personnel, medical personnel, family and friends. Additionally, new G.S. 7B-301(c) provides that if a social services director receives a report of sexual abuse of a juvenile in a child care facility and knowingly fails to notify the SBI, the director is guilty of a Class 1 misdemeanor.

One of my colleagues recently tipped me off to a great article in the Journal of the American Medical Association by Dr. Jennifer G. Clarke entitled Perinatal Care for Incarcerated Patients: A 25-Year-Old Woman Pregnant in Jail. 305 JAMA 923 (2011). I wish I could share the full article but it does not appear to be available without a subscription. The abstract, at least, is available here. The article uses the case of a Rhode Island woman sentenced to a 1-year jail term during the second trimester of her pregnancy as a springboard for discussing the issues, benefits, and challenges of caring for an incarcerated pregnant woman. Though its target audience is health care providers the article offers plenty of food for thought for people in the criminal justice system—as well as an opportunity to summarize some related points of North Carolina law.

The article begins with a moving first-person account of the woman’s jail stay. She describes a range of emotions, going from being “glad I came to jail to get cleaned up so my child could be born clean” to “getting really sad because I’m gonna have my baby in jail.” When it came time for her to deliver she was moved to a community hospital where, aside from some minor complications on account of her prior heroin use, everything went smoothly. She was discharged after 36 hours and returned to the jail. Shortly thereafter she was granted some type of parole to a community-based residential parenting program.

The article highlights the many challenges of being pregnant or having a baby while serving an active sentence. Many such pregnancies are complicated even before any imprisonment beings; they are, according to the article, often unplanned and compromised by “variable prenatal care, poor nutrition, domestic violence, illicit drug and alcohol abuse, [and] sexually and parentally transmitted infections.” Once the woman is imprisoned, institutional security requirements impede optimal care. For example, shackling and handcuffs create a hazard due to imbalance and the risk of falls, and officer escort requirements reduce the likelihood of successful breastfeeding after delivery. Faulty assumptions about state and federal privacy laws, such as the Health Insurance Portability and Accountability Act (HIPAA), can frustrate communication at every stage in the process.

In spite of these challenges, though, many studies have paradoxically shown “better outcomes for pregnancies managed behind bars than for women of similar socioeconomic status whose pregnancies are managed in the community.” Some outcome measures actually improve with increasing lengths of incarceration—which is not so much an endorsement of inmate medical care as it is an indictment of a “preincarceration environment . . . characterized by poverty, drugs, chaos, and danger.”

North Carolina law doesn’t say much about pregnant inmates, but there are a few important provisions to note. Jail regulations require jails to have a written medical plan that addresses the handling of emergency medical problems, specifically including emergencies involving pregnancy. 10A NCAC 14J. 1001(b)(5). The regulations also provide that pregnant women must receive four servings from the “milk group” each day instead of the usual two afforded to jail inmates. 10A NCAC 14J .0903(c). For pregnant prison inmates, G.S. 148-4(7) authorizes the Secretary of Correction to put a prisoner on maternity leave for a period not to exceed 60 days. The law says that county departments of social services are “expected to cooperate” with DOC officials to coordinate “prenatal care, financial services, and placement of the child.” DOC’s policy on Inmate Maternity Leave is available here.

Finally, there is a special sentencing option available for certain pregnant women. When a pregnant woman is convicted of a “nonviolent crime,” the court may, under G.S. 15A-1353(a), specify in the order that the date of service of the sentence is not to begin until at least six weeks after the birth of the child or other termination of the pregnancy, unless the defendant requests otherwise (which, given some of the research cited in the JAMA article, a woman might reasonably do). The court is authorized to impose reasonable conditions upon the defendant during the “waiting period” to ensure that the defendant will return to begin serving the sentence.

The issue of inmates with children obviously goes beyond pregnant women. Thousands of inmates—both men and women—are separated from their families while serving time in prison. Some states have programs allowing very young children to live with their mothers in prison (Washington’s program is described in this article). There is no such program in North Carolina, although the N.C. Correctional Institution for Women has long had a program called Mothers and Their Children (MATCH) that provides a home-like space to facilitate enhanced visitation. A nonprofit group called Our Children’s Place has worked to establish a full-time housing unit where women could actually live with their babies or preschoolers, but it is not yet operational. (Several times the General Assembly has asked for information about the program, most recently in section 19.15 of S.L. 2009-451, the 2009 appropriations act.) For defendants eligible for probation, the court might want to consider a residential program like Summit House, which describes itself as a “residential alternative-to-prison program for mothers convicted of a non-violent crime and their minor children.”

It was Father’s Day this Sunday, so it’s a good time for a post about family relationships. As a jumping off point, I’ll use a case that was recently highlighted in one of the clipping services to which I subscribe. The case is State v. Hubert, __ S.W.2d __, 2010 WL 2077166 (Tex. Ct. Crim. App. May 26, 2010), and the basic facts are as follows.

The defendant was on parole and lived with his grandfather. The grandfather told the defendant’s parole officer that the defendant was violating the terms of his parole by “driving without a license, [leaving] the state, and [possessing] firearms.” Officers arrested the defendant on the front porch of the grandfather’s house, then asked the grandfather for consent to search the home. The grandfather gave consent, and opened the door of the defendant’s bedroom for the officers, who found guns and ammunition in the room.

The defendant was charged with possession of a firearm by a felon, and he moved to suppress, contending that his grandfather lacked authority to consent to a search of the defendant’s room. The motion was denied by the trial court, but after the defendant was convicted, an intermediate appellate court reversed. The Texas Court of Criminal Appeals, however, reversed again and reinstated the defendant’s conviction.

The court noted that some cases “have followed the view that, when two autonomous adults jointly occupy a dwelling and have separate bedrooms, each occupant generally has a higher expectation of privacy in his or her own bedroom,” and consent by the other occupant is insufficient to support a search of the bedroom. In effect, these cases have created a rebuttable presumption that joint occupants of a residence lack authority to consent to a search of one another’s bedrooms. The Hubert court, however, rejected this view. Noting that the issue of authority to consent to search is “always a fact-specific inquiry,” the court seemed effectively to adopt the reverse presumption: at least where the joint occupants are closely related, the court was inclined to “presume that [each] relative has sufficient common authority over the [other’s] bedroom to authorize [a] search.”

The court further appeared to conclude that the grandfather was the sole owner of the house; that the defendant was not paying rent; and that there were no “indici[a] of exclusion,” such as a lock on the door, that suggested that the defendant’s situation was not subject to the presumption of common authority.

Hubert is in the mainstream of cases in this area. See generally 4 Wayne R. LaFave, Search and Seizure § 8.4(b) (4th ed. 2004) (stating that the “overwhelming majority” of cases hold that a parent’s consent suffices to search a child’s room, even if the child is not a minor); Robert L. Farb, Arrest, Search, and Investigation in North Carolina 80 (3rd ed. 2003) (“Generally, a parent has the authority to consent to a search of a child’s room,” but noting that such authority “may be less likely” if the child is not a minor); United States v. Rith, 164 F.3d 1323 (10th Cir. 1999) (upholding parent’s authority to consent to search of eighteen-year-old’s room); State v. Moore, 316 N.C. 328 (1986) (strongly suggesting that a mother’s consent was sufficient to support the search of her adult son’s room, but also holding that the son failed properly to preserve the issue for appeal). That said, these can be complicated, fact-intensive cases. The older the “child,” the more private the room, and the more the child looks like a tenant, the less likely a court is to find that the parent has the authority to consent to a search.